Reed-Union Corp v Sabra International Pty Ltd [2002] NSWSC 1170

New South Wales Supreme Court

CITATION : Reed-Union Corp v Sabra International Pty Ltd [2002] NSWSC 1170 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4953/02 HEARING DATE(S) : 19 - 21 November 2002 JUDGMENT DATE : 25 November 2002

Reed-Union Corporation (P) PARTIES : Sabra International Pty Limited (D1) Benver International Pty Limited (D2) JUDGMENT OF : Hamilton J

COUNSEL : R J H Darke SC and M Darke (P) M J Steele (D1 & 2) SOLICITORS : Minter Ellison (P) Dibbs Barker Gosling (D1 & 2) CATCHWORDS : PROCEDURE [24], [92] - Courts and Judges generally - Courts - Concurrent jurisdiction of different courts - Transfer of proceedings under cross-vesting legislation - In general - Onus of proof - Applicant bears "persuasive" onus - Onus not discharged - Supreme Court procedure - Practice under Supreme Court Rules- Appearance - Application for transfer under cross-vesting legislation - Defendants cannot make application under Part 11 r 8 without filing appearance. LEGISLATION CITED : Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5(2)(b)(iii) Supreme Court Rules 1970 Part 11 r 7 & r 8 CASES CITED : James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 Rosenboom v Qantas Airways Limited [2002] NSWSC 792 DECISION : Defendants must file appearance to make application for transfer under cross-vesting legislation. Application for transfer to Supreme Court of Victoria refused.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

MONDAY, 25 NOVEMBER 2002

4953/02 REED-UNION CORPORATION v SABRA INTERNATIONAL PTY LIMITED & ANOR JUDGMENT 1 HIS HONOUR: This is an application under s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 ("the Cross-Vesting Act") to transfer these proceedings to the Supreme Court of Victoria on the ground that it has been made out that it appears to the Court that it is otherwise in the interests of justice that the proceedings be determined by that court. 2 As was pointed out by Spigelman CJ in James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 at [3], the grant of the power to be exercised does not confer a discretion. Once a court has reached the satisfaction stipulated it must transfer the proceedings to the other court. However, there is a very large element of value judgment to be made by the court in coming or not coming to the requisite conclusion. So far as the question of whether or not the applicant bears an onus of establishing the relevant matter, then it is natural to regard the applicant as carrying at least the persuasive onus: see per Mason P in James Hardie supra at [100]; and see also per Sperling J in Rosenboom v Qantas Airways Limited [2002] NSWSC 792 at [53]. 3 These proceedings are brought by a United States corporation. It sought advice from, and had the proceedings commenced by, solicitors in Sydney and has retained Sydney based counsel. The subject transaction is a contract relating to the distribution of goods in Australia. The defendants carry on their operations in Victoria. Goods are distributed from Victoria throughout Australia including, it is not disputed, New South Wales. The defendants have Victorian solicitors. They have retained Sydney solicitors solely for the purpose of making this application. So far as the evidence shows, they have not selected the counsel who will conduct the proceedings. Their papers are in Melbourne, as are the witnesses they propose to call. The plaintiff proposes to call a witness resident in the USA, but none resident in New South Wales. 4 The considerations relevant to "the interests of justice" were discussed as follows by Mason P in James Hardie supra at [95] - [99]: "[95] The judgment of Higgins J (with whom Gallop J agreed) in Dawson [v Baker (1994) 120 ACTR 11] contains a summary of the case law relating to 'the interests of justice', a re-appraisal of Waterhouse (R W) v Australian Broadcasting Corporation (1989) 86 ACTR 1 (see at 22), and a useful checklist of factors relevant to the decision to order a transfer of category (iii) cases, namely: • application of substantive law; • forensic advantage or detriment conferred by procedural law; • the choice made by a plaintiff or a forum and the reasons for that choice; • substantive connections with the forum; • balance of convenience to parties and witnesses; and • convenience to the court system.